Dem
51
GOP
49
Late Friday, as promised, the Supreme Court announced a decision on the mifepristone cases working their way through the federal court system right now. And that decision was that the ban on mifepristone imposed by Judge Matthew Kacsmaryk would be stayed while the process works itself out. So, the abortifacient will remain available, at least for now.
The order from the Court was unsigned, and the only pieces of information it contains is a note that Clarence Thomas dissented from the decision, followed by a couple of pages in which Samuel Alito notes that he's also dissenting and then explains why. It's clumsily written, and brings to mind a Willis Van Devanter, or an Anthony Kennedy, both of them rather well known for their lack of skill when it came time to put pen to paper.
Given the nature of the order, it means there are many things we do not know. First up, how did the vote come down? At least five justices voted for the stay and two voted against, but that's all that can be inferred at this point. Second, why were two extra days needed? Was Alito trying to whip votes? Did he need extra time to crank out that C-minus/D-plus-level legal essay? It's only 822 words; you'd think a Supreme Court justice could knock out that many in their sleep. Come to think of it, given the quality, maybe he did write it in his sleep.
The third question, and the one that everyone cares about, is exactly why the five (or six, or seven) voted as they did. Undoubtedly, folks who would like to see mifepristone remain legal are hopeful that this is a sign that a majority of the justices regard Kacsmaryk's decision as problematic, and are prepared to gut it when that time comes. Not so fast, though. The odds are pretty good that at least some of the justices were motivated by purely procedural issues, and that their vote is not instructive when it comes to their views on the merits of the case(s). In fact, if a justice (say, Brett Kavanaugh) is pretty strongly inclined to ban mifepristone, it's actually tactically better for him to let the process play out in this exact way. Then, if a ban is ultimately upheld, the anti-abortion judges can say that the decision was careful and reasoned, and not arrived at with undue haste. That's not going to make pro-choice forces happy, but at least it's a better look than sustaining the ban with an unsigned order issued in the middle of the night at the start of the weekend.
So, other than the fact that mifepristone will remain legal in the U.S. for at least a few more months, we don't know a whole lot more now than we knew at the start of the day on Friday. That said, we are going to know all, soon enough. There is simply no way the Supreme Court does not ultimately end up hearing this case, and at that point the nine justices will have to lay all their cards on the table (the bench?) for everyone to see. (Z)